Driving Under Influence of Alcohol or Drugs (Alcohol Specific)
Under California Vehicle Code Section 23152, it is unlawful for any person who is under the influence of any alcoholic beverage, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. The district attorneys offices across the state of California regularly prosecute drivers for driving a vehicle under the influence of alcohol.
DUI of alcohol is typically results in two charges being filed by the prosecutor’s office. The first charge is the common law DUI statute codified as California VC 23152(a), while the second charge is VC 23152(b).
23152. (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. (b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
In order to convict a driver under the VC 23152, the prosecution needs to prove all elements of the crime beyond a reasonable doubt.
The elements of the offense are
- A vehicle
- While 1. under the influence of alcohol, or 2. under the influence of drugs, or 3. under the combined influence of drugs and alcohol, OR having .08% alcohol in the blood. [/list]
Felony drunk driving adds two additional elements to the misdemeanor charge.
- Doing any illegal act or negligently any legal duty, and
- Personal injury to another proximately caused by the act or neglect.
It is not enough to prove that the defendant was under the influence, obviously the prosecution needs to prove that the defendant was driving a vehicle. Putting the defendant behind the wheel turns out to be much easier than one would think. A driver is defined by a person who drives OR is in actual physical control of the vehicle.
One California Court had to rule on an interesting set of facts. A civilian witnesses the defendant sitting next to a “moped” (a scooter with a small engine, which could also be propelled by pedaling) lying on the side on the street. The evidence was that the defendant had been pedaling the moped, but there was nothing to indicate that the motor was running prior to the accident. The court said “a person steering and controlling a vehicle may be prosecuted for drunk driving when the vehicle is in motion but the engine is off.”
Some cases are clear, where the defendant actually “drives” the vehicle on the street. But in some circumstances, whether the defendant actually “drove” a vehicle can only be determined by conducting an extensive legal research. Your attorney will need to compare your case to those already decided by the California courts.
The statute clearly encompasses automobiles, trucks, and motorcycles. California courts have given a fairly expansive interpretation of the statute, thus bulldozers, mopeds, and tractors are all considered a vehicle under the DUI statue. Notice, that a bicycle has been ruled NOT a vehicle under this DUI statute.
VC Sec. 21200.5 now provides” it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug. Any person arrested for a violation of this section may request to have a chemical test made of the person’s blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person’s blood pursuant to Section 23612, and, if so requested, the arresting officer shall have the test performed. A conviction of a violation of this section shall be punished by a fine of not more than two hundred fifty dollars ($250).”
Under the Influence
Obviously, the essence of the drunk driving charge is intoxication. As explained above, there are two different sections to the DUI statute. The prosecution does not necessarily need to prove the .08% BAC, as the first section does not require it. If you have submitted to blood-alcohol testing, and the results were .08% BAC or higher, the complaint will probably contain a second count allegation (VC 23152(b)). Under 23152(b), impairment is irrelevant, as the only issue is the blood-alcohol level itself.
The impairment must be proven under (a) section, though the evidence of blood alcohol concentration can be offered as evidence. For section (a),the prosecution will/can rely on police reports in order to prove that a person did not possess the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. The prosecution will focus on physical appearance of the driver, driving pattern prior to the stop, and field sobriety tests.
There a number of arguments a reputable defense attorney should made on behalf of his/her client charged with a DUI. First of all, the police must have a reasonable suspicion in order to stop a vehicle. The investigating officer must weigh the totality of the circumstances to determine whether sufficient objective facts exist to create reasonable suspicion that the driver is engaged in criminal activity. United States v. Arvizu, 534 U.S. 266 (2002). If the person was pulled over illegally, then the evidence found due to an illegal stop must be suppressed.
As previously noted, (under section (a)) only a person who did not possess the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties can be convicted of a DUI. This means, that an argument should be made that an impairment in your case was insignificant.
Additionally, there are a number of recurring examples of textbook defenses. If the defendant was ordered by a police officer to drive his or her vehicle off the highway after an accident to remove an obstruction to traffic. Entrapment … should be argued. Necessity defense?
If you have been charged with a DUI, please remember that you have only 10 DAYS to request an administrative hearing from DMV, otherwise your license will be suspended automatically. To learn more about DMV administrative hearing click here.
If you are facing charges of DUI of alcohol in California call 619-357-6677. If you are facing DUI in Nevada or Utah call 801-364-6474.
Please drive sober!
- Driving Under Influence of Marijuana (Marijuana DUI) | California Vehicle Code Section 23152 | VC 23152
- DMV Administrative Hearing
- Possession of a Controlled Substance with Intent to Sell | HS 11351
- Transportation for Sale of a Controlled Substance| HS 11352
- Possession of Marijuana | Health and Safety Code Section 11357 | HS 11357
- Marijuana Cultivation, Harvest, Plant | HS 11358
- Possession of Marijuana for Sale | Health and Safety Code 11359 | HS 11359
- Marijuana Sale, Giving Away, Transportation | California Health and Safety Code Section 11360 | HS 11360
- Possession of Drug Paraphernalia | California Health and Safety Code 11364 | HS 11364
- Manufacturing a Controlled Substance (Marijuana, Hash Oil, etc.) | HS 11379.6(a)
- Can a vehicle be searched by police officers if they smell marijuana outside of the vehicle?
- When can police stop and search my vehicle?
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+